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High CourtOtherNot stated in the judgment (Nairobi High Court petition)

Mary Ang’awa & Prof. Joseph Kieyah v Nairobi Club, Joseph Mwita Chacha & Julius Ogony; Julius Koros, Jane Thirikali & David Aduda (Interested Parties)

High Court of Kenya
3 April 2020
WKW. Korir
1,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Even if you win a lawsuit, the court might make you pay your own legal fees if the dispute is resolved or if awarding costs would cause unnecessary harm.

What this practically means

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Executive summary

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This judgment resolves only the question of costs in a constitutional petition by Mary Ang’awa and Prof. Joseph Kieyah against Nairobi Club, its office bearers Joseph Mwita Chacha and Julius Ogony, with Julius Koros, Jane Thirikali and David Aduda as interested parties. By 26th November, 2019 counsel for the petitioners conceded that the relief sought had been obtained through the Club's Annual General Meeting of 24th May, 2019 and that the petition had been overtaken by events; only costs remained contested. The petitioners, relying on the proviso to Section 27 of the Civil Procedure Act and Peter Muriuki Ngure v Equity Bank, argued that costs follow the event and that the respondents had stalled proceedings and disobeyed orders of 21st December, 2018, so costs should be awarded against the respondents but not the interested parties. The respondents, citing Jasbir Singh Rai and the IEBC ex-parte Abdi principles, contended that a conservatory order issued by Makau, J on 22nd May, 2019 in Nairobi HC Petition No. 180 of 2019 had reinstated the petitioners' membership and allowed their participation in the AGM; they complied, published notices, attempted settlement, and the petition ended early without substantive determination. They also urged that costs would burden members' funds and that reconciliation under Article 159(2) should be promoted. Korir, J found the respondents' compliance unrebutted, held that the Petition No. 180 order resolved this petition, agreed that saddling the whole membership with costs for leaders' mistakes would be unjust, and that an award would scuttle reconciliation. He directed each party to bear their own costs.

Key legal issues

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01

Whether costs should follow the event and be awarded to the petitioners

Holding

No; despite the general rule that costs follow the event, the court declined to award costs because the respondents complied with the orders in the related petition, the petition was overtaken by events, an award would burden all members' funds, and reconciliation was needed

Reasoning

The court found the respondents' compliance with the conservatory order in Petition No. 180 of 2019 unrebutted and that this order resolved the petition. It weighed the members'-funds point, the early termination of proceedings, and Article 159(2) reconciliation, concluding an award would be unjust and prolong a mooted dispute.

p. 2

Legal principles established

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  • Costs follow the event by virtue of the proviso to Section 27 of the Civil Procedure Act, but the award remains discretionary and depends on the conduct of the parties and the circumstances of the case
  • Where a petition is resolved by orders in related proceedings and the parties' dispute is overtaken by events, the court may direct each party to bear its own costs, particularly where an award would burden a club's whole membership for the mistakes of a few leaders

Court orders

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  1. 1.Each party to bear their own costs of the proceedings
Jurisdiction invoked
Original constitutional petition jurisdiction of the High Court; Article 159(2) of the Constitution invoked on reconciliation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Ang’awa & Prof. Joseph Kieyah v Nairobi Club, Joseph Mwita Chacha & Julius Ogony; Julius Koros, Jane Thirikali & David Aduda (Interested Parties)", Case Analysis (2020). Not stated in the judgment (Nairobi High Court petition). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.